Williams v. Portland General Elec. Co.

• Decision Date: 13 August 1952
• Citation: 195 Or. 597,247 P.2d 494
• Parties: WILLIAMS et al. v. PORTLAND GENERAL ELECTRIC CO.
• Court: Oregon Supreme Court

Page 494

247 P.2d 494

195 Or. 597

WILLIAMS et al. v. PORTLAND GENERAL ELECTRIC CO.

Supreme Court of Oregon.

Argued Jan. 9, 1952.

Decided Aug. 13, 1952.

Clarence J. Young, Portland, argued the cause for respondents. With him on the brief were Oglesby H. Young and Koerner, Young, McColloch & Dezendorf, all of Portland.

Norman L. Easley, of Portland, argued the cause for appellant. With him on the brief were Griffith, Phillips & Coughlin, of Portland.

Before BRAND, C. J., and ROSSMAN, LUSK, LATOURETTE and TOOZE, JJ.

ROSSMAN, Justice.

This is an appeal by Portland General Electric Company, sole defendant, from an order of the circuit court which, after vacating a judgment entered by that court July 3, 1950, in favor of the defendant, ordered a new trial of the action. The order was made upon motion of the plaintiffs. The latter are Catherine Williams and Bruce Williams, widow and minor son, respectively, of one Ernest W. Williams, who was injured fatally June 7, 1949, while in the discharge of his duties as an employee of the defendant-appellant. The minor son appeared by guardian ad litem. The action which led to the entry of the challenged order was instituted to recover damages for the death upon charges that the defendant, in conducting the work in which the deceased was employed, failed to comply with the requirements of the Employers' Liability Act (§§ 102-1601 to and including 102-1606, O.C.L.A.) and that as a proximate result thereof Williams lost his life. Trial resulted in a verdict and judgment for the defendant.

The motion for a new trial was predicated in large part upon the instructions which were given to the jury.

The deceased was in the defendant's employ as an apprentice lineman and was electrocuted while working upon one of the defendant's power poles. Evidence indicated that at the time of the fatality the deceased was engaged in cutting a wire composed of many strands with a bolt clipper which the defendant had furnished for that purpose. The bolt clipper, which was somewhat like a large pair of shears, was so made that when the handles were pressed together the blades could cut in two a wire a half inch or so in diameter. At the point of the angle which formed when the blades were opened there was a round notch about a quarter of an inch across. According to the evidence, the defendant furnished the bolt clippers to its linemen as suitable for cutting wires. The complaint's charge that the cause of the death was the defendant's purported failure to have complied with the Employers' Liability Act was segregated into eight specifications, one of which is the following:

'In providing decedent with defective bolt clippers in that the same were notched in the angle formed by the cutting blades, thus making it possible for the blades to be snagged by uncut strands of wire.'

Evidence indicated that while Williams was cutting the wire an uncut strand became lodged in the notch of the clipper and presently the dangling end of the wire came into contact with a charged wire, thereby causing Williams to be electrocuted.

Both parties agree that the work which was under way at the time of the fatality was governed by the Employers' Liability Act. Referring to that statute, the defendant's brief says:

'The Company admitted the applicability of the act on the pleadings, but denied negligence. * * * What is known in the law as 'common law' or 'ordinary negligence' was not in the case.'

The jury was instructed:

'I instruct you that the defendant Portland General Electric Company at the time and place of this accident was subject to the duties imposed upon it by the Oregon Employers' Liability Act, and Ernest W. Williams was entitled to the protection of said act.'

After the death, the defendant made an alteration to its bolt clippers which consisted of fastening to the outer sides of the blades, at the place where the notch appeared, a small piece of steel which covers the notch and is intended to prevent a wire which is about to be cut from entering it. The pieces of metal can possibly be termed guards. The plaintiffs claim that the alteration enhances the safety of the clippers and that the misfortune would not have occurred if the change had been made before June 7, 1949. They also claim that the very fact that the alteration was made is evidence showing that it was practical, prior to the fatality, to have rendered the clippers more safe.

The motion for a new trial was based in part upon a claim that error was committed when the jury was instructed:

'You are instructed that if you find under the evidence in this case that the defendant made a change in the bolt cutters in use at the time of the accident, such change is not to be considered by you as any evidence that the defendant was negligent. Such change may be considered by you in relation to the issue that the defendant failed to use every practicable care, caution and device.'

Section 102-1601, O.C.L.A., provides:

'* * * all owners, * * * having charge of, or responsible for, any work involving a risk or danger to the employees * * *, shall use every device, care and precaution which it is practicable to use for the protection and safety of life and limb, limited only by the necessity for preserving the efficiency of the structure, machine or other apparatus or device, * * *.'

According to the plaintiffs, the change which the defendant made in the bolt clipper after the fatality was evidence of antecedent negligence.

Other instructions told the jury:

'As a general rule, negligence means the failure to exercise ordinary care It is a failure to exercise that degree of care and diligence that an ordinarily prudent person would exercise in his own affairs under like or similar circumstances.'

As we have seen, the parties are agreed that the case was governed, not by the common-law standards of due care, but by the Employers' Liability Act, and it will be recalled that the defendant's brief says tersely: 'What is known in the law as 'common law' or 'ordinary negligence' was not in the case.' After the instructions had employed the above-quoted definition of negligence, they continued:

'In a case which is governed by the provisions of the Oregon Employers' Liability Act, the defendant is held to a different and higher standard of conduct for the care and protection of persons entitled to the benefits and protection of that act.'

The instructions then related to the jury the pertinent safety requirements of the act, and added:

'A failure to comply with the requirements of the Oregon Employers' Liability Act with respect to any person entitled to its protection is negligence per se, that is, negligence in and of itself--negligence as a matter of law.'

Generally, evidence which shows that following an injury which the plaintiff alleges was tortiously inflicted, repairs or improvements were made to the instrumentality that caused the injury, or that precautions were inaugurated to prevent similar mishaps, is inadmissible to prove antecedent negligence. Erickson's Dairy Products Co. v. Northwest Baker Ice Machine Co., 165 Or. 553, 109 P.2d 53; Foster v. University Lumber Co., 65 Or. 46, 131 P. 736; and Love v. Chambers Lumber Co., 64 Or. 129, 129 P. 492. However, in order to succeed in this case, it was necessary for the plaintiffs to establish an element which is not a part of ordinary negligence cases. It will be recalled that they averred that the bolt clippers were so fashioned that it was 'possible for the blades to be snagged by uncut strands of wire' and that they claimed that it was practical to have overcome that purported defect. The 'and generally' clause of § 102-1601, O.C.L.A., as we have seen, requires employers to use 'every device, care and precaution which it is practicable to use for the protection and safety of life and limb, limited only by the necessity for preserving the efficiency of the * * * apparatus or device, * * *.' Therefore, in cases which are based upon that clause, the plaintiff must present evidence showing that the instrumentality [in this case the small guards] which he claims should have been employed was practical and would not have impeded 'the efficiency of the * * * apparatus or device'. Proof which shows that subsequent to the mishap (1) the employer began the use of the instrumentality which the plaintiff alleges would have rendered the work more safe; (2) experience has shown that the change was practical as a safety measure; and (3) use of the instrumentality has not hampered efficiency, is admissible evidence of antecedent negligence. Malloy v. Marshall-Wells Hardware Co., 90 Or. 303, 173 P. 267, 175 P. 659, 176 P. 589, and Love v. Chambers Lumber Co., supra.

From the foregoing it is evident that if the 'device, care and precaution' which the plaintiffs contend the employer should have employed was not practical as a safety measure, or if it would have impeded 'the efficiency of the structure, machine or other apparatus or device', the 'and generally' clause of § 102-1601 authorizes no recovery. But if (1) the 'device, care and precaution', which was omitted and which the plaintiffs aver should have been taken, was practical as a safety measure, and (2) it would not have lessened efficiency, the 'and generally' clause authorizes a recovery; assuming, of course, that proximate cause is properly established.

Stating the rule in the terms of this case, it was the defendant's duty to have installed upon the bolt clippers, prior to the fatal injury of Williams, the guards which it later placed upon them; provided the guards were practical as safety devices and incapable of interfering with the efficiency of the clippers. Therefore, evidence which showed that the recently installed guards (1) had proven to be practical as safety devices, and (2) had not lessened the efficiency of the clippers, had a tendency to establish the defendant's duty and its violation thereof. Obviously, evidence...